Gestational Surrogacy Regulations in Delaware

Overview

Gestational Surrogacy is expressly permitted by statute and the requirements and enforcement of surrogacy arrangements are specifically and clearly established in Delaware Code §8-801 through 8-810.

Intended Parents

Age requirement:
18 years of age or older
Marriage requirement:
No
Married heterosexual couple:
Yes
Married same-sex couple:
Yes
Unmarried heterosexual couple:
Yes
Unmarried same-sex couple:
Yes
Mental health counseling:
Yes
Resident status:
No* (see DE specific requirements)
Independent legal counsel:
Yes

Gestational Surrogates

Age requirement:
21 years of age or older
Marriage requirement:
No
If married/partnered:
husband’s/partner’s sperm cannot be used
Surrogate status:
Gestational Surrogacy only
Mental health counseling:
Yes
Medical evaluation:
Yes
Resident status:
No* (See DE specific requirements)
Previous pregnancies:
at least one
Use of own embryos:
No
Independent legal counsel:
Yes

Embryos

Intended Parents own sperm:
Yes
Intended Parents own eggs:
Yes
Intended Parents using sperm donor:
Yes
Intended Parents using egg donor:
Yes
Intended Parents using both egg and sperm donor:
Yes

Birth of Child

Birth in Delaware:
Yes
Birth outside of Delaware:
Yes, however, discuss with your legal counsel

Pre-Birth Orders are commonly granted, and are available to any Intended Parent, whether they be single or a couple, or genetically related to the child or not. Same-sex Intended Parents are treated like any other heterosexual couple in Delaware.

Parentage

Pre-Birth Orders:
Yes
Hearing to obtain Order:
No
Post-Birth Orders:
Yes

Delaware Specific Requirements (only one need apply)

Birth anticipated to be in Delaware:
Yes
Birth happened in Delaware:
Yes
Intended Parent(s) reside in Delaware:
Yes
Gestational Carrier resides in Delaware:
Yes
Medical procedure for assisted reproduction was performed in Delaware:
Yes

General Information

Will Delaware Vital Records honor a Pre-Birth Order from another state:
Yes
What is the typical time frame to obtain a birth certificate after delivery:
10 days
How are same-sex parents named on the final birth certificate:
Parent and Parent
Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier:
Yes* (Because there is no case law it is unclear whether these circumstances would be accepted by the court. Please consult with a local attorney to determine if you can move forward with gestational surrogacy under these conditions)
Can an international same-sex male couple subsequently obtain a birth certificate naming only the biological father or both fathers with no mention of the Gestational Carrier:
Yes

Second Parent and Stepparent Adoptions for Delaware Residents:

This situation typically arises if the child is born outside of Delaware. The parents then return to Delaware to obtain a second parent adoption or stepparent adoption in Delaware. Please consult with your attorney on this matter if this issue is to arise.

Traditional Surrogacy in Delaware?

Traditional Surrogacy legality in Delaware is unclear. Traditional Surrogacy is not recognized by the statute, nor is there any precedent case law. Please consult with a local attorney to determine if you can move forward with traditional surrogacy.
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